Permission, Fair Use, Public Domain, Creative Commons &

More

Willow Misty ParksAnderson School of Management

University of New MexicoAlbuquerque, NM

© 2013 Willow Misty Parks

IMPORTANT NOTICE

• General legal information.• This presentation is NOT legal advice

or legal representation. • This presentation sets out general

concepts.• Anyone determining that they need

legal advice or representation should seek counsel and advice from an attorney or law firm.

Topics

I. Getting Permission

II. Fair Use

III. Public Domain

IV. Creative Commons/ Attribution

V. Other options

I. GNU

II. Wikipedia licenses

III. General permission granted

VI. Types of Works

VII. Other Considerations

IntroductionWhy does permission matter?

“It isn't what we don't know that gives us trouble,

it's what we know that ain't so.”

—Will Rogers

I. People believe that if they change a work enough or use it in a collage, it is not infringement. *

II. Many people do not understand the extent of ownership and are later limited in the uses for their work due to infringement.

III. There are many myths around copyright that are not true.

IV. If people understood intellectual property rules at the start, they could find works that are in public domain and available in fair use.

Is Permission Required?

• Determine if the selected material requires permission from the copyright holder or if it is fair use.

• Review fair use factors and be cautious if portrays copyright holder in a negative light.

• Proper credit should always be given to the original source.

Getting Permission

• Is permission required? • Getting permission is a process of getting

consent from the owner of the intellectual property or creative work.

• Permission is sometimes called “licensing.”• Permission means you have a license to use the

work. • Use without permission is violating or infringing

the owners’ rights.

Getting Permission

• Unauthorized use, intentionally or out of ignorance, may lead to legal consequences: lawsuit, forced to stop using, and/or pay money to the owner.

• Ethics question of using someone's intellectual property without permission.

• The more successful a project may become, the more likely the infringement will be detected and enforced.

• Fear costs of paying for permission.

Getting Permission

Steps: • Is permission needed?

• Identify owner

• Identify uses and rights required

• Contact owner or Licensing org.

– iCopyright or CCC (Copyright Clearance Center)

• Determine request process and costs for permission.

• Get agreement in writing!

Exceptions to Permission

• In most cases permission is required!

• Exceptions– “Fair Use”– Public Domain works– Works dedicated by the author for public use. – Terms of use: check if permission/license has

limitations or requirements such as limited to non-commercial, use in its full form, and/or including authors’ information and biography.

Fair Use

• Uses

• Factors

• Other considerations such as “shrink wrap” contracts that can limit fair use by contract.

Is It Fair Use or Infringement?

First, consider purpose: criticism, comment, news reporting, teaching, scholarship, or research and parody

Four factors to be considered: 1. Purpose and character of the use, including whether it is

commercial nature or for nonprofit educational purpose2. The nature or the copyrighted work (creative, fact, useful,

compilation)3. The amount and substantiality of the portion used in relation to the

whole (a short quote or an entire article, the heart of the work)4. The effect of the use upon the potential market for or value of the

copyrighted work.

Beware! No reliable general quantitative standards. If you are relying on fair use to use someone else’s copyrighted work, be very, very careful. Ultimately, only a judge or jury has the final say on whether your use is “fair use” or not.

Erasing the Blanket Educational & Nonprofit Myth

• There is NO blanket educational or non-profit exception to the copyright.

• Movies played in class: Performance or display of a legal copy of a work by instructors or pupils in the course of face-to-face teaching activities or a nonprofit educational institution, in a classroom or similar place devoted to instructional use is not a copyright infringement.

• Textbooks: copies pose significant risks • Course packets: have been heavily litigated • Guidelines for Copies of Books or Periodicals for Classroom

Purposes by Not-For-Profit Educational Institutions: 1. Brevity, 2. Spontaneity, 3. Cumulative effect, and 4. A notice of copyright.

Parody & Fair Use

• Practically by definition, you will NOT be able to obtain the author’s permission for this use. Indeed, the owner of a work seldom wants to license someone else to ridicule that work.

• “Fair use” is the guarantee of breathing space within the confines of copyright.

• Parody: A literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule—burlesque, satire, criticism, raunchy twist, and spoof.

• Parody’s humor, its comment, necessarily springs from recognizable allusion to its object through distorted imitation. Its art lies in the tension between a known original and its periodic twin.

• Mostly, reflected in the application of Factor 3 of Fair Use; thus, allows more of the original to be used.

Public Domain Sources: What Works Are in Public Domain?

“Public Domain” are works that for one reason or another are not covered by copyright and are ordinarily free for all to use.

• Works out of copyright: created before 1924 in the United States

• Type of work not protected under copyright or patent/trademark

• Work dedicated to public domain by owner• Improperly registered or not renewed works created before

1978• If in a government publication be sure not from another

protected source

Public Domain

• No permission is required for works in Public Domain.

• Important to acknowledge sources by using credit line “Source” or “Data from”

• Examples: Hamlet, by William Shakespeare, Moby Dick by Herman Melville, The 5th Symphony by Ludwig van Beethoven (except for recordings), Little Women, by Louisa May Alcott, Frankenstein by Mary Shelley, Pride and Prejudice by Jane Austen, The Adventures of Tom Sawyer by Mark Twain, etc.

Public Domain

• Expired Copyright• Not properly renewed: between 1922 and before

1964 and not renewed in the 28th year. • Dedicated works• “Caution”: multilayered works, modified,

patented idea & trademark. • If it’s in public domain, you may use it, but

academic honesty requires that you still attribute to the source and author.

Examples of Public Domain Derivatives

Public domain work: Still Available

• Novel “Little Women”• Shakespeare’s

“Romeo and Juliet”• 19th century oil

painting

New material: Protected

• Dramatization for television

• New introduction and forward

• Reproduction of 19th century oil painting by photo lithography

Creative Commons

• Creative Commons (CC) is a non-profit organization devoted to expanding the range of creative works available for others to build upon legally and to share.

• The organization has released several copyright-licenses known as Creative Commons licenses free of charge to the public.

• These licenses allow creators to communicate which rights they reserve, and which rights they waive for the benefit of recipients or other creators.

Creative Commons

• Creative Commons (CC)

• A Creative Commons license is one of several public copyright licenses that allow the distribution of copyrighted works.

• A Creative Commons license is used when an author wants to give people the right to share, use, and even build upon a work that they have created.

Creative Commons

• Noncommercial (nc) Licensees may copy, distribute, display, and perform the work and make derivative works based on it only for noncommercial purposes.

• No Derivative Works (nd) Licensees may copy, distribute, display, and perform only verbatim copies of the work, not derivative works based on it.

Creative Commons

• Attribution (by) Licensees may copy, distribute, display, and perform the work and make derivative works based on it only if they give the author or licensor the credits in the manner specified by these.

• Share-alike (sa) Licensees may distribute derivative works only under a license identical to the license that governs the original work. (See also copyleft.)

Other Similar

• Copyleft (a play on the word copyright) is the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work.

Other Similar

• Besides licenses, Creative Commons also offers a way to release material into the public domain through CC0, a legal tool for waiving as many rights as legally possible, worldwide. Development of CC0 began in 2007.

• Public Domain Mark: a tool for labeling works already in the public domain.

Other Similar

• GNU Free software means that the software's users have freedom. (The issue is not about price.) Developed the GNU operating system so that users can have freedom in their computing.

• GNU is a Unix-like operating system that is free software—it respects your freedom.

Considerations By Type of Work

• Text

• Photographs

• Artwork

• Music

• Website

• Academic/Educational

• Trademarks

Text

• Who Owns it? – Start with online permission services

• Copyright Clearance Center• RSi Copyright

– Locate the Publisher • Permissions departments

– Contact the Author

Text: Types of Work

• Consider the Types of Work – Syndicated text– Interviews– Letters– Speeches– Out of print works– Advertising text – Excerpts– Paraphrasing

– Poetry – Private letters– Other quotes– Unpublished works:

letters, theses, dissertations, lectures, student essays, colleagues, relatives and friends

Text—Risks and Liability

• Risk– Lost investment and time– Diligent research may show good faith– Ease of removal if required – Reputation and ethics of user

• Liability – Litigation– Halting distribution

Photographs

• Royalty Free or Obtain Rights to Photo • Image Banks

– Corbis

• Historic Photos– Corbis– Time Life Pictures– Hulton/Archive Photos

• Celebrity photos and movie freeze frames

Photographs • Considerations:

– Freeze Frames– Modification of photo

• Additional consideration should be given if photo contains: Art, Trademarks, or People– Model releases– Legal issues: Invasion of privacy or defamation – Do not use in a way negative to the subject

Artwork• Fine art

– Paintings– Sculptures– Photos of art

• Graphic art– Comics– Cartoons– Royalty free clip art

• Shrink wrap and click wrap agreements: limitations

Music

• Song & Sound Recording (print & audio)– Print music and lyrics– Do not use audio format without permission!

• Songs played publicly – Examples: on radio, at businesses, at clubs – Fees for “performance royalties” – Licenses from BMI or ASCAP

• Songs used with audiovisual works– Harry Fox agency– Music Publisher

Music

• With music learn more about:– Compulsory licenses, and– Pay mechanical royalties.

• MP3s and downloading music

• Webcasting and audio streaming

• Some nonprofit and chartable uses don’t require permission.

• Beware of proceeding without permission!

Music Clearance Companies

• Production Music Libraries

• Performing Rights Societies

• Mechanical Rights Societies

• Record Company Resources

Video & Audio

• Video and Audio– Do not use movie and audio clips without

permission.– There are often layers of permission required

such as: • Studio• Actor or actresses (Screen Actors Guild)• Screen writer (Screen Writers Guild of America)

Software & Websites

• Software– Do not use without permission– Use wording or credit line provided – Pay close attention to placement

• Screen shots and screen displays– Possible fair use/use with caution– May have protected photos, graphics, other

images and text.

Software & Websites

• Linking– “Hypertext” link– Internal link– External link– Permission for links: RSiCopyright or Copyright

Clearance Center.

• Framing – Beware of “inlining” content

• Linking agreements

Academic & Educational

• Course Packs– Clearance services– University bookstores and copy shops

• Educational use guidelines (not same as fair use)– Applies K-12 schools, colleges, and

universities. – Also, libraries, museums, hospitals, and other

non-profit institutions

Academic & Educational • To provide “greater certainty and protection”

for teachers• Circular 21 of the Copyright Office• Rules for “Educational Use” of Music• Rules for recording and showing television

programs• Proposed rules for:

– Digital copying

– Digitized images in lectures, scholarly presentations, and publications.

Academic & Educational

• “Educational Use” of Text– Teacher may make one copy of

• Chapter of book• Article from periodical or newspaper• Short poem• Chart, graph, diagram, drawing, cartoon, or picture from a

book.

– Photocopies all right for handout if:• Do not replace textbooks• Students not charged more than actual copy costs• Not more than one copy per student• Notice of copyright is affixed to each copy

Trademark

• Do not use a trademark…– To attempt to suggest sponsorship or

endorsement by trademark holder– Disparagement & defamation – In a manner that confuses consumers– To “dilute” or use in an unwanted commercial

association that “muddies” the mark. • Tarnish• Blurring

• If you’re not sure, get advice!

More Permissions & Protections

• Plagiarism and Academic Honesty

• Trade Libel

• Right of Privacy

• Right of Publicity

• Defamation

• Product Disparagement

• Tortuous Interference with Contract

©2013 The Business Bookshelf, LLC & Willow Misty Parks

Copyrights and all rights are reserved in aspects that are original and fixed by the author, and to compilation, organization and arrangement under the US Copyright Act, except where the copyrights are owned by another, are under GNU licenses, or do not have copyright as in Public Domain and Federal Government works. Some works may be used under the legal principle of Fair Use and the author makes no representations of ownership to works that are currently owned or protected under the Copyright Laws and therefore gives no consent to any further uses including but not limited to reproductions, display, distribution by any other parties. The author takes no responsibility and will not be liable for any unauthorized uses by others that may lead to violations of the Copyright Act.